DWI Standardized Field Sobriety Testing INFORMATION UPDATE! by Peter H. Lederman and Gilbert Snowden Several
years ago, we presented an article involving the three Standardized Field
Sobriety Tests, the One Leg Strand Test, the Walk and Turn Test and the
Horizontal Gaze Nystagmus Test. Field
Sobriety Tests are designed to assist an officer in determining whether
probable cause exists to arrest a driver suspected of DWI, for breath
testing purposes. Our earlier
article addressed the need to replace what were referred to as
“anecdotal field sobriety tests” that had unknown reliability with
Standardized Field Sobriety Tests which had known objective scoring
factors, decision points, and degrees of reliability.
Over the past years, more and more Courts have relied upon
Standardized Field Sobriety Tests and have placed less reliance upon
anecdotal field sobriety tests. Recent
cases have also considered Standardized Field Sobriety Tests.
Perhaps the most significant New Jersey case
involving Standardized Field Sobriety Tests, is the recent Appellate
Division opinion in the matter of State v. Doriguzzi, 334 N.J.
Super. 530 (App. Div. 2000). This
opinion addresses the reliability of one of the three Standardized Field
Sobriety Tests, the Horizontal Gaze Nystagmus Test.
The Appellate Division found that the Horizontal Gaze Nystagmus
Test, which is designed to determine probable cause of intoxication by
passing a stimulus in front of the eyes while observing the movement of
the pupils, could not be determined by the Court to be scientifically
reliable, based upon the lack of information upon which the Court could
rely to determine the reliability of the test, that is, whether it
measured what it was intended to measure.
The Court looked for additional data for consideration before this
test could be used in trial.
Doriguzzi is significant because it recognizes the
scientific nature of the Horizontal Gaze Nystagmus Test and the need for
empirical data to support its reliability.
This is in contrast with the anecdotal field sobriety tests, which
have no known reliability at all. Perhaps
Doriguzzi suggests the need for verifiable field sobriety testing
based upon empirical data, before it becomes admissible in DWI trials.
Another significant recent opinion was decided by the Ohio Supreme
Court, State v. Homan. This
matter, decided on August 16, 2000, and appearing at 732 N.E.2 952,
deals with one of the most critical issues in Standardized Field Sobriety
Testing, that being the necessity to adhere to all procedures established
in the Standardized Field Sobriety Tests.
In Homan, the Ohio Supreme Court held that, “... it is
well established that in Field Sobriety Testing even minor deviations from
the standardized procedures can severely bias the results...we find that
strict compliance with Standardized Field Sobriety Testing procedures is
neither unrealistic, nor humanly impossible in the great majority of
vehicle stops in which the police choose to administer the tests.”
Homan, therefore, stands for the proposition that
Standardized Field Sobriety Tests conducted by police officers must be in
strict conformity with all Standardized Field Sobriety Test procedures.
This is consistent with the position taken by the National Highway
Transportation Safety Administration (“NHTSA”), requiring adherence to
all Standardized Field Sobriety Test procedures before reliability can
attach.
Furthermore, additional directives have been
provided by the National Highway Traffic Safety Administration in its most
recent validation study, published in August 1998.
In this report NHTSA limits the use of Standardized Field Sobriety
Tests to determination of probable cause,
as opposed to ultimate driving impairment.
More particularly the report states that, “Driving a motor
vehicle is a very complex activity that involves a wide variety of tasks
and operator capabilities. It
is unlikely that complex human performance, such as that required to
safely drive an automobile, can be measured at roadside.
Thus, SFST results, help officers to make accurate DWI arrest
decisions even though SFSTs do not directly measure driving impairment.”
As a result of this recent validation study, the SFST tests are
fully acceptable in establishing probable cause to arrest, if administered
properly in the prescribed standardized manner, but do not have “face
validity” to measure driving impairment.
As for sobriety tests other than the battery of SFST tests, this
validation study suggests that no tests were validated in this or any
other study. Prosecutors who
were interviewed suggested that the optium situation would be for all law
enforcement agencies to restrict field sobriety evaluations to the
standardized battery of three tests.
The study further notes that SFSTs largely have replaced the
unvalidated performance tests of unknown merit that once were the patrol
officer’s only tools in helping to make post-stop DWI arrest decisions.
NHTSA’s SFSTs presently are used in all 50 states and have become
the standard pre-arrest procedure for evaluating DWI in most law
enforcement agencies.
Furthermore, there are changes to SFST test
procedures appearing in the February 2000 DWI Detection and Standardized
Field Sobriety Testing” student manual.
This manual and earlier manuals make clear certain preconditions as
a requirement for relible field sobriety testing. The manuals refer to a
“final and major point”, that
the validation of these test applies, “ only when the tests are
administered in the prescribed, standardized manner and only when the
standardized clues are used to assess the suspect’s performance and only
when the standardized criteria are employed to interpret that
performance.” It is
emphasized that “if any one of the Standardized Field Sobriety test
elements is changed, the validity is compromised.” This is consistent
with the finding in Homan, noted earlier.
With this general principal in mind, various
other modifications in the SFST’s are noted.
Some of these changes involved the Horizontal Gaze Nystagmus test.
In particular, clarification is provided regarding the minimum of 4
seconds the stimulus must be held when checking for distinct nystognus
phase of the maximum deviation. Eyeglasses
must also be removed. Finally,
other types of nystagmus, optikinetic nystagmus and fatigue nystagmus are
identified as alternate types of nystagmus that might be observed when HGN
testing is undertaken. Obviously,
this will not come into play until the Courts determine that HGN testing
is scientifically reliable.
With regard to the Walk and Turn Test, the following changes have
been made:
1.) In
the former manual, an officer is advised during the demonstration and
administration of this test to have the subject place his left foot on the
line, while the current manual refers to the use of a “real or
imaginary“ line. It should
be noted though that this contemplates establishing a reference point and
understanding between the two parties so that the officer can be
reasonably certain that the person is not imagining a line totally
different from the one that the officer is imagining.
2.) The
former manual calls for a demonstration which requires the officers to
walk 2 or 3 steps, while the current manual advises him to demonstrate 3
heel to toe steps.
3.)
The scoring factor involving not touching heel-to-toe is scored in
the October 1995 manual if the suspect leaves a space of one-half inch or
more between heel and toe on any step.
In the current manual, this scoring factor is scored when the
suspect leaves a space of more than one-half inch between the heel to toe
on any step.
4.)
The October 1995 manual instructs the officer to observe the
suspect from a distance of 3 or 4 feet and remain motionless while the
suspect performs the test. The officer is advised that being too close or excessive
motion on his part will make it more difficult to perform this test.
The February 2000 manual changes this requirement to a general
requirement to observe the suspect from a safe distance and limit
movements which may distract the suspect during the test. 5.)
The February 2000 manual adds the word “reasonably” and deletes
“under relatively safe conditions” when describing the test conditions
for the Walk and Turn test. This
manual advises that a “reasonably” dry, hard, level, non-slippery
surface is required. While
the October 1995 manual advises that if the conditions of a dry, hard,
level, non-slippery surface under relatively safe conditions do not exist,
suspects should be asked to perform this test elsewhere or only the HGN
should be used, the current manual states that “recent field studies
have indicated that varying environmental conditions have not affected a
suspect’s ability to perform this test”.
This still does not eliminate and/or preclude the aforementioned
test conditions prior to administration of the
test.
6.)
The October 1995 manual advises that some people have difficulty
with balance even when sober. While
the October 1995 manual advises that the test criteria for the Walk and
Turn is not necessarily valid for suspects 65 years of age or older,
persons with injuries to their legs, or persons with inner ear disorders
and individuals who cannot see out of one eye may also have trouble with
this test because of poor depth perception, the current manual states only
that the original research indicated that individuals over 65 years of
age, back, leg, or middle ear problems had difficulty performing this
test. Examples of conditions that may interfere with a suspects
performance may include a person’s weight.
The
following noteworthy changes regarding the One Leg Stand are noted:
1.)
In the October 1995 manual, an officer is advised to observe the
suspect from at least 3 feet away and remain as motionless as possible
during the test so as not to interfere.
The current manual states that the officer should observe the
suspect from a safe distance and remain as motionless as possible so as
not to interfere.
2.)
Deleted from the February 2000 manual are any reference to the
instructions that if the suspect is counting quickly, have the suspect
continue counting until 30 seconds have elapsed.
3.)
In the October 1995 manual the test conditions for this test are
listed as requiring a reasonably level and smooth surface.
This manual also advises that there should be adequate lighting for
the suspect to have some visual frame of reference.
In the current February 2000 manual the test conditions include a
reasonably dry, hard, level and non-slippery surface.
The reference to lighting conditions are omitted.
4.)
The October 1995 manual advises that the test criteria for One Leg
Stand is not necessarily valid for suspects 65 years of age or older, or
50 pounds or more overweight, and that persons with injuries to their
legs, or inner ear disorders may have difficulty with the test.
The current and updated February 2000 manual advises that
“original research indicated that certain individuals over 65 years of
age, back, leg or middle ear problems, or people who are overweight by 50
or more pounds had difficulty performing this test.” In the last analysis, Standardized Field Sobriety Tests remain the only objective field sobriety tests that have reliability in determining probable cause of intoxication, to be used in determining whether a driver should be arrested for DWI. It is important to remember that these tests are not designed to determine driver impairment. While the scientific reliability of these tests has been questioned in some recent articles, they remain the best tools available to officers in making a roadside evaluation. Home | Proposed
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